SYMBIOSIS LAW SCHOOL, Nagpur

2ND INTERNAL ASSESSMENT

PROPERTY LAW - I

Assignment- Doctrine of Part Performance

NAME: DEVANSHI D. YADAV

DIV: D (BBA-LLB)

PRN: 19010422129

SUBMITTED TO – DR. LEENA LANGDE

 Doctrine of Part Performance
What is Doctrine of Part Performance?

Doctrine of Part Performance is incorporated to prevent fraud and from taking illegal advantage on account
of non-registration of the document. It is the important provision under transfer of property act, 1882. The
Doctrine basically says that transferor or any person claiming under him any right in respect of the property
of which the transferee has taken or continued in possession, other than a right in respect of the property of
which the transferee has taken or continued in possession, other than right expressly provided by the term of
the contract.

For example – X is the tenant and Y is the owner of the property. Y agrees to sell the property to X on which
X is staying. X agreed on that and pays the consideration amount. The tenancy was to end on 10th, but even
after that X stayed in the possession of the property in furtherance of the agreement. Y, sells the same property
to C. C now becomes the owner of the property and asks X to leave the possession of the property.

The doctrine essentially allows a transferee or any person under him to take possession or continue to hold
possession of a property whose interest has been so transferred to him and for which the transferee has
performed his obligation. It prevents the transferor or any person under him to eject such a transferee.

Essential Required for Doctrine of Part Performance.

1. There must be a contract to transfer for consideration of any immovable property. Section 53-A is
applicable is only where contract for the transfer is valid in all respects. It must be an agreement
enforceable by law under the Indian Contract Act, 1872.

VR Sudhakara Rao v. T.V. Kameswari. It was held that section

2. The written contract must be for the transfer of an immovable property for consideration. The written
contract on the basis of which the property has been processed, must clearly suggest the transfer of
property.

In the case of Ranchoddas v. Davaji, the Supreme Court lays down that a valid contract must be for
consideration, in writing and signed, the terms necessary to constitute the transfer can be ascertained with
reasonable certainty. If the terms are ambiguous or confusing, then this Section cannot be applied.

3. The possession in furtherance of contract. The transferee has taken possession in part performance of
the contract or has done some act in furtherance of the contract.
4. Taking possession is not only the method of part performance of contract. If the transferee is already
in possession of the property then, after the contract of transfer, he has to do some further act in part
performance of the contract.
 Nathulal vs Phoolchand - Nathulal was the owner of the land: he had executed no conveyance in favor
of Phoolchand in the land or the factory. Nathulal had sued for possession relying upon his
and Phoolchand could defeat that claim if lie established his defense of part-performance under s. 53A of
the Transfer of Property Act.

What is Section 53-A of Transfer of Property Act, 1882

53A. Part performance.—Where any person contracts to transfer for consideration any immovable property
by writing signed by him or on his behalf from which the terms necessary to constitute the transfer can be
ascertained with reasonable certainty, and the transferee has, in part performance of the contract, taken
possession of the property or any part thereof, or the transferee, being already in possession, continues in
possession in part performance of the contract and has done some act in furtherance of the contract, and the
transferee has performed or is willing to perform his part of the contract, then, notwithstanding that where
there is an instrument of transfer, that the transfer has not been completed in the manner prescribed therefore
by the law for the time being in force, the transferor or any person claiming under him shall be debarred from
enforcing against the transferee and persons claiming under him any right in respect of the property of which
the transferee has taken or continued in possession, other than a right expressly provided by the terms of the
contract: Provided that nothing in this section shall affect the rights of a transferee for consideration who has
no notice of the contract or of the part performance thereof.

Provided that nothing in this section shall affect the rights of a transferee for consideration who has no notice
of the contract or the part performance thereof.

Difference between Doctrine of Part Performance in Indian Law and

Common Law:
Under English law there is no need for a written agreement to attract the doctrine. An oral agreement can also
evoke the doctrine of part performance. Whereas in Indian Law the contract and the agreement has to be in
writing.

In India the protection provided under the doctrine can only be used to defend and it cannot be used as an
independent remedy. Whereas in English law, the doctrine can be used as both. ” A defence and an attack”
hence it can be used to enforce a right of possession and not merely to protect it.

Scope of Doctrine of Part Performance

The Doctrine of Part Performance is applicable to only written and valid contract. It is not applicable to oral
or void agreement. The contract must be in writing and signed by the transferor. The transferee has taken
possession of the property as a part performance of a contract and transferee must be ready and willing to
perform his part of promise. This section is applicable not only to the contract of sale but it is applicable to all
such contracts of transfer for consideration. It has been held in (Jacobs Private Limited vs. Thomas Jacob12)
that the doctrine is intended to be used as a shield, not a sword. Amendments to Section 53-A of Transfer of
Property Act, 1882 (hereinafter called as T.P. Act); An amendment has been made in Section 53-A of Transfer
of Property Act by the Registration and other related laws and Act (48 of 2001). This Amending Act (48 of
2001) has made following changes in section 53-A:

Section Amendment

Sub Section 1 A of Registration Act inserted:

The documents containing contract to transfer for consideration, any immovable property for
the purpose of Section 53-A of Transfer of Property Act, 1882 (4 of 1882) shall be registered
Section 17
if they have been executed on or after the commencement of the Registration and other Related
Laws (Amendment) Act, 2001 and if such documents are not registered on or after such
commencement then, they shall have no effect for the purposes of the said section 53-A

Section 49 of Registration Act, in the proviso; words, figures and letters as evidence of part
Section 49 performance of a contract for the purposes of Section 53-A of T.P. Act, 1882 (4 OF 1882), shall
be Omitted.

Section 53-A In Section 53-A, para no. 4 of T.P. Act, the words the contract, though required to be registered,
para 4 has not been registered, or, Omitted.

The provisions of this Amending Act (Act of 48 of 2001) came into force with effect from 24-September-
2001. This Amendment Act is not retrospective.

Doctrine of Part Performance- Sword or Shield?

The nature of right that embodies the Doctrine of Part Performance is only as a shield or protection. As held
by the Privy Council and further upheld by the Supreme Court, that this right, though statutory in nature, is
not a positive right, but negative in the sense that it is used as a defence only by the transferee against the
transferor. While it protects the right of possession over property of the transferor, it does not enrich him/her
with entitlement. The section does not create a title in the defendant but imposes a statutory ban on transfer of
such disputed property. Neither can the transferee maintain a suit against a third party to the contract for the
enforcement of a bar as against the transferor.

Role of Doctrine Of Part Performance

The Doctrine of Part Performance is a very important provision under the Transfer of Property Act. According
to the statutory provisions, a person must have contracted to transfer immovable property for a consideration.
The transfer should be in writing and duly signed by either the transferor or his agent. From the terms of the
document, it should be reasonably certain that the intent of the parties is to transfer the immovable property
from the transferor to the transferee.

In addition, the transferee must have, in part performance of the contract, taken possession of the property or
any part of the property. In case the transferee is already in possession of the property, he should continue in
possession in part performance of the contract and must have also done some act in furtherance of the contract.
Also, the transferee must either have performed his part of the contract or must be willing to do so.

If these conditions are satisfied, the transferor is debarred from enforcing any right in respect of the property
against the transferee. He can only enforce a right expressly provided by the terms of the contract entered into
between the parties.

This is despite the fact that a contract may not be registered and completed in the manner as prescribed by
law. These provisions have been enacted to give equity. The objective is to prevent a transferor or his successor
from taking advantage of the fact that the document is not registered, provided the transferee has performed
his part of the contract.

These provisions tend to furnish a statutory defence to a person who has no registered title deed in his favour
to maintain his possession, if he can prove that a written and signed contract in his favour has already been
executed. Also, he must have completed his part of that contract.
In order to be eligible for protection under the Doctrine of Part Performance, it must be shown that there is a
contract to transfer property for a consideration.

Further, the contract must be in writing, signed by the person sought to be bound by it, and the terms necessary
to constitute the transfer should be ascertainable with reasonable certainty from it. These are the pre-requisites
to invoke the provisions of Section 53A of the Transfer of Property Act.
In addition, it must be shown that the transferee has acted in part performance of his part of the contract. The
act must be in furtherance to the contract and not otherwise. The act claimed to be in part performance must
be unequivocally referable to the pre-existing contract.

There needs to be a real nexus between the contract and the acts done in pursuance to the contract or in
furtherance of the contract. When a series of acts are done in part performance, one such act may be payment
of consideration. Any one act by itself may or may not be of such a conclusive nature.
Conclusion
Thus, the doctrine of part performance is an equitable doctrine. It is incorporated to prevent fraud from taking
advantage on account of non-registration of the document. It is based on the doctrine: Equity looks at the
intention rather than form.
This doctrine is important to protect the transferee’s interest. As when a transfer deed of any sort is formed it
becomes quite clear that the transferee does its part to pay the consideration in exchange of the property. But
also, there should be some protection given to the transferee’s possession for which this doctrine comes in
play. As many a times, there’s just a mutual agreement or a contract signed on a piece of paper or by any
informal means and in furtherance of that the buyer does some act so in later stages the transferor cannot
encroach or ask for eviction such protection or we can call it defence must be available to the transferee. The
judiciary has given this statutory defence but it needs more clarity upon some of its ambiguous aspects.